Oracle Sues Google – How Google Tried to End Run Java and Why Oracle’s Lawsuit Has Merit

In a terse press release yesterday released by Oracle, the company announced it is suing Google over patent infringement related to Google’s Android operating system. The release simply cited a statement from spokesperson Karen Tillman as follows:

This unexpected move by Oracle sends a strong and threatening message to Google and the entire Android community—specifically that Oracle will use its intellectual property rights to get compensated for innovations around the exploding mobile marketplace. Oracle’s CEO Larry Ellison is inserting himself in the middle of an ever-evolving battle between Google CEO (and former Apple Director) Eric Schmidt, Apple CEO Steve Jobs, a long-time friend of Ellison’s.

Filed in U.S. District Court in Northern California, the law suit comes on the heels of Oracle’s acquisition of Sun Microsystems in January of this year. Oracle is claiming seven counts of patent and certain copyright infringement perpetrated by Google, damages against those acts and injunctions against continued acts of infringement.

The suit alleges that Google’s Android competes with Oracle’s Java as an OS platform for mobile devices. Oracle is claiming that Android’s software stack includes Java applications running on a Java-based framework with core libraries running on Dalvik, the virtual machine (VM) that runs applications on Android devices.

Dalvik – Google’s Java “End Run”

Dalvik is a Google developed virtual machine that allowed the company to skirt Sun’s original licensing terms when Android was released. Specifically, when Sun was an independent company, it released its free Java source code under an open source license (GNU GPLv2). It did this of course to attract open source developers. In the license there is a “Classpath Exception” which is a crucial provision (see last paragraph) that allows developers to link their code to Java without the need to fall under a GPL license—meaning developers can make their own licensing terms and not be bound by GPL. Here’s the rub – Sun only included the Classpath Exception for the core Java platform – it’s not included in the mobile edition. So Sun brilliantly appeared to be playing open source benefactor while at the same time keeping control of the mobile side of the equation (i.e. the rights to the gold mine).

Google, realizing what Sun had done, developed an end run strategy to Sun’s move, which resulted in Dalvik. Davlik is a virtual machine, similar to the VMs in Java or .Net. Google developed it from scratch (most likely with the team of Java engineers it hired in mid last decade). Google made Davlik open source skirting Sun’s GPL license (which doesn’t include the Classpath Exception for mobile). Because of Davlik, Google doesn’t have to ship Java Virtual Machine with Android yet its Android developers can still use the core Java integrated development environment (IDE). Google gets to have its cake (leveraging the Java community) and eat it too (by shipping its own VM with Android thus skirting Sun’s licensing terms).

You Can’t End Run Whales Without Consequences

As everyone knows, companies like Oracle, IBM, HP, Intel and Microsoft don’t simply let other firms end run their IP. Google in my opinion, by skirting Sun’s licensing terms, knew exactly what it was doing. At the time, Google had a great relationship with Sun but it had to know that eventually, as money started pouring in from Android it would have a day of reckoning—likely in the form of some cross-licensing agreement. Now that Oracle owns Sun, Google’s move may turn out to be more expensive than it originally thought. There is no way for me to know if in fact Google has violated any of Oracle’s patents but in squinting through the lawsuit you can see the strategy Oracle’s attorneys took. They’re going after Google’s infringement of IP surrounding Java such as security, access control and other indirect methods related to Java owned by Oracle. Here are the seven areas where Oracle owns patents that it is claiming were violated by Google.:

1) “Protection Domains To Provide Security In A Computer System

2) Controlling Access To A Resource

3) Method And Apparatus For Preprocessing And Packaging Class Files

4) System And Method For Dynamic Preloading Of Classes Through Memory Space Cloning Of A Master Runtime System Process

Add to this copyright infringement and the fact that Microsoft, years ago, did a cross license with Sun on virtual machines to cover its but and the suit adds up; big time.

The Angle on this Law Suit

When Oracle bought Sun, everyone (me included) assumed it was for defensive purposes. In particular, because Oracle’s platforms were so reliant on Java, it didn’t want to let Sun get into the hands of competitors, specifically IBM. The timing of this suit is brilliant. Android, according to Gartner, has just surpassed iPhone for the number 2 spot in mobile market share and Google is the logical deep pocket target to go after. Android has too much momentum to stop now and Oracle is asserting itself as a leader; signaling that it will use its growing patent portfolio to its advantage. While many of Google’s fans and Android proponents (of which I am one) will hammer Oracle and claim it is stifling innovation and growth, the fact remains that Sun had the foresight to write its licenses in a way to potentially protect its interest in mobile markets, where giant telcopolies shouldn’t be given free rein on software innovations from the technology industry.

Oracle is doing what any firm in its position would do, although probably more in a more aggressive posture than McNealy would have taken with Schmidt.

The bottom line: Sun never could figure out how to make money with Java – maybe Oracle will.

David Vellante is co-CEO of SiliconANGLE Media, as well as co-founder and Chief Analyst of The Wikibon Project, the world’s leading open source IT research community. Dave is a long-time tech industry analyst, entrepreneur, writer and speaker. He is co-host of theCUBE – “The ESPN of Tech.” He is also a co-founder of Crowdspots, an angel funded startup based in Palo Alto using big data techniques to extract business value from social data. Prior to these exploits Dave ran a CIO consultancy and spent a decade growing and managing IDC’s largest business unit. He lives in Massachusetts with his wife and four children where he serves as the President of his town’s local “Kiddie Sports” association. Dave holds a B.S. in Applied Mathematics from Union College.

24 Comments

Tony Fleming
on August 13, 2010 at 9:34 am

I have to disagree. I think Sun wrote the license for leverage over the mobile space so they would not be cut out of its leadership. Not to look for a payday. But that’s just my honest opinion. Regardless of the merit Google is getting sued because they made Java on mobile work. Again IMHO

dvellante
on August 13, 2010 at 9:38 am

Tony agree on leverage. Just saying that Mobile is where all the action (money) is and Sun knew that.

Mark 'Rizzn' Hopkins
on August 13, 2010 at 10:13 am

I’ve gotta be honest – between this high-stakes shake-down, and the tiff between Automattic and Thesis, it looks like Open Source ends up being more legal wrangling than its worth, once a business model gets involved.

It’s particularly sad, because what Oracle is doing here is clearly not in the spirit of Open Source. Google’s response is clearly not in the spirit of fair play in business, either.

There’s no doubt that Open Source stuff like this increases the rate of innovation across multiple sectors, but the rope-a-dope move Oracle pull here will run cross to that aim, and have a chilling effect on the Open Source community (as well as the developer community at large) moving forward.

dvellante
on August 13, 2010 at 10:31 am

I’m really interested Mark to understand how (or if) Oracle approached Google on this. I may be naive, but I believe that McNealy and Schmidt would have figured out a way to protect Sun’s interest while at the same time preserving the momentum of Android. Some type of X-licensing agreement a la MSFT.

While I don’t accept the line of “don’t innovate, litigate” (because Oracle has every right to protect it’s IP) I do agree with your sentiment that the bigger issue here is technology industry innovation and growth. Oracle is in my view less concerned about that then it is in world domination.

Mark 'Rizzn' Hopkins
on August 13, 2010 at 10:53 am

I completely agree – Oracle/Sun is within its legal rights. Doesn’t make them come off as any less of a jerk, though. :-)

what could be more expensive for Google – fighting potential IP infringement from Oracle (just write them a check), or being tethered to a Java VM in what may turn out to be the hottest mobile platform every conceived.

garygmacfadden
on August 13, 2010 at 12:16 pm

I’ve got a Droid. Should I worry?

dvellante
on August 13, 2010 at 12:30 pm

Ha! By the time this is settled your Droid will be Void

Mark 'Rizzn' Hopkins
on August 13, 2010 at 12:30 pm

I wouldn’t say worry. Definitely something to pay attention to.

Quoed from CNN
on August 13, 2010 at 1:06 pm

Java distributed under an open source license from the very beginning. That includes the virtual machine and all the source code libraries.
That means it’s FREE. The distributor realizes profit from this only in the long run – when they get a chance to offer more advanced products to the end-user using the same platform. Microsoft made a boat-load with this strategy, by the way, when they freely distributed DOS to nearly everyone and then sold Windows on top of it after the market penetration reached global proportions.
Since a myriad of developers were selling Java-derived products (quite profitably) for over a decade (Java is that old) under this license and Sun simply watched, then even if some language in the license reserves the right to go after them at some point, the right to sue has been lost based on a simple concept: laches. Sun lost the right to sue because they were just sitting on it. It would be extremely unfair to developers who created something new and profitable with Java, years after an invention like Java merged with the public domain to now be subjected to a lawsuit based on a right that the original patent-holder failed to exercise for such a long time. Hence: laches.
Since a buyer of a patent does not renew the original patent-holder’s right to sue on that patent once that right has expired (by passage of time, laches or otherwise), Oracle is in the same position as Sun was and is now not entitled to ANY profit made by Google of the Android operating system.
Furthermore – a common public license, like GNU demands that software based on the platform distributed by the license should be distributed freely, otherwise the distributor of the license can go after distributee’s profits. Since Google’s distributing Android for free (its profits are on the back-end – generated after painstakingly encouraging more people to use Google’s online features), the license hasn’t been violated.
For all the foregoing reasons, the lawsuit should be dismissed.

Just a Answer
on August 13, 2010 at 5:45 pm

The Open Source JAVA GPL is Not covered in the Mobile Version, MOBILE VERSON of Java. This is what Google is using and therefor is not under the Open source GPL.

So it is Valid.

Just a Answer
on August 13, 2010 at 5:52 pm

Also, Understand that if you had read the full lawsuit, You would have seen as like so others have missed that the Open Source part of Java is General use, Regardless if Android is free you still can Not distribute someone’s code with it to support your product. “Google uses android to support it main AD Revenue”.

The GPL of Java’s Open Source Version Doesn’t Include the Mobile version Code .

< The Mobile Code is what Google is using and it is NOT Open Source. >

Just a Answer
on August 13, 2010 at 6:00 pm

But Remember, Google is using the MOBIL JAVA version, It is NOT Open Source.

So Oracle is Not hurting the GPL Open Source Version of Java, But is is Protecting the Mobile Version that Does Not Fall under the Open Source License.

So Lets be fair to Oracle, They are protecting what is NOT Under or included in the Open Source of the Java Library, and that is the MOBILE Version of Java that is Not Open Source, But due to bad reporting people think it is.

Robert Picone
on August 13, 2010 at 9:02 pm

Just to keep disinformation to a minimum, Google/Android isn’t using the “Mobile Version” of Java, it isn’t using ANY Sun/Oracle Java product at all. It is using its own (Apache Harmony derived) JVM based upon its own instruction set and its own bytecode. None of Sun’s code or implementations of any product are being used.

These patents are vaguely defined restrictive things that cover huges swaths of software, including just about any virtual machine. It seems likely enough that even without anything at all similar to Java iPhones violate patents 1, 2, and 7 for example, but it also seems likely that as Apple got into the patent game much earlier than Google, there are some terrifying things in their own patent arsenal Oracle wouldn’t want to contend with.

Software patents stifle innovation, that is their only purpose.

dvellante
on August 13, 2010 at 9:41 pm

Good response Quoed. I agree with much of what you say in terms of the delay but the fact is the mobile edition didn’t have the same license terms as you state. I am not an attorney but my understanding of laches is that it applies generally in situations where the delays have weakened the plaintiff; which is clearly not the case here. If you are a legal professional I would be interested in the application of laches to this case especially in California. You make it sound black and white of which I’m skeptical. Are your assertions based on a legal interpretation or your strong opinion?

I’m also interested in your notion that because Google only profiting on the backend that very fact protects it against Oracle’s assertions. Again – if you are a lawyer I’d be very happy learn more about the legal aspects of this case.

The big question to me remains Oracle’s intent. It’s unclear to me what Ellison is after. More fame, more fortune, fun?

Erik
on August 13, 2010 at 10:22 pm

No Google is not using the mobile version or any version of Java. Dalvik is a completely separate implementation. It will compile Java language to its own bytecode Most of what Oracle is suing over is patents. The problem for them is that we are post Bilski and none of those patents are tied to a specific machine. The SC said that isn’t the only test, but that it is useful.

Oracle might just lose those patents and this case.

Mark 'Rizzn' Hopkins
on August 13, 2010 at 11:00 pm

I appreciate your enthusiasm and contributions, Robert, but it may be a bit over the top to call this “disinformation,” seeing as this is an editorially independent blog, not a mouthpiece of any corporation.

The Mad Hatter
on August 14, 2010 at 9:16 am

The only problem is that Oracle is committing sepukku – watch their sales start to slide. Most IT people don’t like patent aggressors, and they tend to show their disapproval by buying someone else’s technology.

dvellante
on August 14, 2010 at 9:58 am

Interesting perspective Mad Hatter. You’re basically saying that Oracle is in lose-lose situation. If it wins against Google, it will send a daunting message to the open source community – that “if we own the code you are beholden to us.” If they lose this battle to Google the rest of the world will say “why are we licensing Java?”

Maybe this is ultimately Ellison’s goal– to stick a knife in the heart of open source. As any open source gets momentum (mysql, Java, etc) Ellison buys it and kills it.

Business is war…

Anonymous
on August 16, 2010 at 3:45 pm

You’re seriously dreaming. This won’t impact their sales on iota.

Anonymous
on August 16, 2010 at 3:46 pm

What Google is doing with Android is not in “the spirit of open source” either. They sue anyone who doesn’t use their version inculding the non-open source code in Android having to do with hardware itnerfaces. Wake up.

Anonymous
on August 16, 2010 at 3:48 pm

You are naive. Sun did plenty of suing over java. They were just a tad distracted withg other things when Android showed up.

Anonymous
on August 16, 2010 at 3:48 pm

Sun tried very hard and failed for years to monetize java.

guest
on August 24, 2010 at 10:17 am

It will come down to the question if Google can distribute a version of the GPLed java for desktops on smart phones.
GOOgle can throw in the missing packages and declare Java compliance, but oracle will try to limit usage of non Java ME runtimes on phones.

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I have to disagree. I think Sun wrote the license for leverage over the mobile space so they would not be cut out of its leadership. Not to look for a payday. But that’s just my honest opinion. Regardless of the merit Google is getting sued because they made Java on mobile work. Again IMHO

dvellante

Tony agree on leverage. Just saying that Mobile is where all the action (money) is and Sun knew that.

Mark 'Rizzn' Hopkins

I’ve gotta be honest – between this high-stakes shake-down, and the tiff between Automattic and Thesis, it looks like Open Source ends up being more legal wrangling than its worth, once a business model gets involved.

It’s particularly sad, because what Oracle is doing here is clearly not in the spirit of Open Source. Google’s response is clearly not in the spirit of fair play in business, either.

There’s no doubt that Open Source stuff like this increases the rate of innovation across multiple sectors, but the rope-a-dope move Oracle pull here will run cross to that aim, and have a chilling effect on the Open Source community (as well as the developer community at large) moving forward.

dvellante

I’m really interested Mark to understand how (or if) Oracle approached Google on this. I may be naive, but I believe that McNealy and Schmidt would have figured out a way to protect Sun’s interest while at the same time preserving the momentum of Android. Some type of X-licensing agreement a la MSFT.

While I don’t accept the line of “don’t innovate, litigate” (because Oracle has every right to protect it’s IP) I do agree with your sentiment that the bigger issue here is technology industry innovation and growth. Oracle is in my view less concerned about that then it is in world domination.

Mark 'Rizzn' Hopkins

I completely agree – Oracle/Sun is within its legal rights. Doesn’t make them come off as any less of a jerk, though. :-)

what could be more expensive for Google – fighting potential IP infringement from Oracle (just write them a check), or being tethered to a Java VM in what may turn out to be the hottest mobile platform every conceived.

garygmacfadden

I’ve got a Droid. Should I worry?

dvellante

Ha! By the time this is settled your Droid will be Void

Mark 'Rizzn' Hopkins

I wouldn’t say worry. Definitely something to pay attention to.

Quoed from CNN

Java distributed under an open source license from the very beginning. That includes the virtual machine and all the source code libraries.
That means it’s FREE. The distributor realizes profit from this only in the long run – when they get a chance to offer more advanced products to the end-user using the same platform. Microsoft made a boat-load with this strategy, by the way, when they freely distributed DOS to nearly everyone and then sold Windows on top of it after the market penetration reached global proportions.
Since a myriad of developers were selling Java-derived products (quite profitably) for over a decade (Java is that old) under this license and Sun simply watched, then even if some language in the license reserves the right to go after them at some point, the right to sue has been lost based on a simple concept: laches. Sun lost the right to sue because they were just sitting on it. It would be extremely unfair to developers who created something new and profitable with Java, years after an invention like Java merged with the public domain to now be subjected to a lawsuit based on a right that the original patent-holder failed to exercise for such a long time. Hence: laches.
Since a buyer of a patent does not renew the original patent-holder’s right to sue on that patent once that right has expired (by passage of time, laches or otherwise), Oracle is in the same position as Sun was and is now not entitled to ANY profit made by Google of the Android operating system.
Furthermore – a common public license, like GNU demands that software based on the platform distributed by the license should be distributed freely, otherwise the distributor of the license can go after distributee’s profits. Since Google’s distributing Android for free (its profits are on the back-end – generated after painstakingly encouraging more people to use Google’s online features), the license hasn’t been violated.
For all the foregoing reasons, the lawsuit should be dismissed.

Just a Answer

The Open Source JAVA GPL is Not covered in the Mobile Version, MOBILE VERSON of Java. This is what Google is using and therefor is not under the Open source GPL.

So it is Valid.

Just a Answer

Also, Understand that if you had read the full lawsuit, You would have seen as like so others have missed that the Open Source part of Java is General use, Regardless if Android is free you still can Not distribute someone’s code with it to support your product. “Google uses android to support it main AD Revenue”.

The GPL of Java’s Open Source Version Doesn’t Include the Mobile version Code .

< The Mobile Code is what Google is using and it is NOT Open Source. >

Just a Answer

But Remember, Google is using the MOBIL JAVA version, It is NOT Open Source.

So Oracle is Not hurting the GPL Open Source Version of Java, But is is Protecting the Mobile Version that Does Not Fall under the Open Source License.

So Lets be fair to Oracle, They are protecting what is NOT Under or included in the Open Source of the Java Library, and that is the MOBILE Version of Java that is Not Open Source, But due to bad reporting people think it is.

Robert Picone

Just to keep disinformation to a minimum, Google/Android isn’t using the “Mobile Version” of Java, it isn’t using ANY Sun/Oracle Java product at all. It is using its own (Apache Harmony derived) JVM based upon its own instruction set and its own bytecode. None of Sun’s code or implementations of any product are being used.

These patents are vaguely defined restrictive things that cover huges swaths of software, including just about any virtual machine. It seems likely enough that even without anything at all similar to Java iPhones violate patents 1, 2, and 7 for example, but it also seems likely that as Apple got into the patent game much earlier than Google, there are some terrifying things in their own patent arsenal Oracle wouldn’t want to contend with.

Software patents stifle innovation, that is their only purpose.

dvellante

Good response Quoed. I agree with much of what you say in terms of the delay but the fact is the mobile edition didn’t have the same license terms as you state. I am not an attorney but my understanding of laches is that it applies generally in situations where the delays have weakened the plaintiff; which is clearly not the case here. If you are a legal professional I would be interested in the application of laches to this case especially in California. You make it sound black and white of which I’m skeptical. Are your assertions based on a legal interpretation or your strong opinion?

I’m also interested in your notion that because Google only profiting on the backend that very fact protects it against Oracle’s assertions. Again – if you are a lawyer I’d be very happy learn more about the legal aspects of this case.

The big question to me remains Oracle’s intent. It’s unclear to me what Ellison is after. More fame, more fortune, fun?

Erik

No Google is not using the mobile version or any version of Java. Dalvik is a completely separate implementation. It will compile Java language to its own bytecode Most of what Oracle is suing over is patents. The problem for them is that we are post Bilski and none of those patents are tied to a specific machine. The SC said that isn’t the only test, but that it is useful.

Oracle might just lose those patents and this case.

Mark 'Rizzn' Hopkins

I appreciate your enthusiasm and contributions, Robert, but it may be a bit over the top to call this “disinformation,” seeing as this is an editorially independent blog, not a mouthpiece of any corporation.

The Mad Hatter

The only problem is that Oracle is committing sepukku – watch their sales start to slide. Most IT people don’t like patent aggressors, and they tend to show their disapproval by buying someone else’s technology.

dvellante

Interesting perspective Mad Hatter. You’re basically saying that Oracle is in lose-lose situation. If it wins against Google, it will send a daunting message to the open source community – that “if we own the code you are beholden to us.” If they lose this battle to Google the rest of the world will say “why are we licensing Java?”

Maybe this is ultimately Ellison’s goal– to stick a knife in the heart of open source. As any open source gets momentum (mysql, Java, etc) Ellison buys it and kills it.

Business is war…

Anonymous

You’re seriously dreaming. This won’t impact their sales on iota.

Anonymous

What Google is doing with Android is not in “the spirit of open source” either. They sue anyone who doesn’t use their version inculding the non-open source code in Android having to do with hardware itnerfaces. Wake up.

Anonymous

You are naive. Sun did plenty of suing over java. They were just a tad distracted withg other things when Android showed up.

Anonymous

Sun tried very hard and failed for years to monetize java.

guest

It will come down to the question if Google can distribute a version of the GPLed java for desktops on smart phones.
GOOgle can throw in the missing packages and declare Java compliance, but oracle will try to limit usage of non Java ME runtimes on phones.